Judgment delivered on June 8, 2023, original received on the same day – Court clerk
Case No. (Wa) 2827 of 2021 (the first case), Case No. (Wa) 447 of 2021 (the second case)
The "Freedom of Marriage for All" lawsuit
Date of conclusion of oral argument: December 8, 2022
5
Judgment
The list of parties is contained in Appendix 1.
(The terms defined in Appendix 1 are also used in the main text.)
Main Text of Judgment

101.

The Plaintiffs' claims are dismissed.

2.

The costs of the litigation shall be borne by the Plaintiffs.
Facts and Reasons

15

I

Plaintiffs' Claims

1.

The Plaintiffs request that the Defendant pay to Plaintiff 1 and Plaintiff 2 1,000,000 yen
each, and interest thereon at the rate of 5% per annum from October 9, 2019 until thecompletion of payment.

2.

The Plaintiffs also request that the Defendant pay 1,000,000 yen each to Plaintiff 3,
Plaintiff 4, Plaintiff 5, and Plaintiff 6, and interest thereon at the rate of 5% per annum

20

from March 8, 2021 until the completion of payment.

25

3.

The Plaintiffs further request that the costs of the litigation be borne by the Defendant.

4.

The Plaintiffs request a declaration of provisional execution.

II

Summary of the Facts
In this case, the Plaintiffs, who filed a marriage notification together with a person of
the same sex and had it rejected, argue that the provisions of the Civil Code and theFamily Register Act which do not permit marriage between persons of the same sex
create a legal situation where same-sex marriage is not allowed and which violates
Article 13, Article 14(1), and Article 24 of the Constitution, and that the failure of the30

Defendant to take necessary legislative measures is unlawful under Article 1(1) of theState Redress Act. The Plaintiffs claim 1,000,000 yen each in compensation for nonpecuniary loss, together with interest thereon at the rate of 5% per annum as provided
for by the Civil Code (before amendment by Law No. 44 of 2017) for the period fromthe date of service of the respective complaints (October 9, 2019 for Plaintiffs 1 and 2,

35

and March 8, 2021 for Plaintiffs 3 to 6) to the date of payment thereof.
1

Undisputed Facts (the facts which are not in dispute amongst the parties and thosefacts which are readily recognized by the evidence set forth below and the entire

1

import of oral arguments)(1)

Sexual orientation
Sexual orientation is a concept that refers to which sexes a person's feeling of love andsexual attraction are directed toward, and includes heterosexuality, where feeling s oflove and sexual attraction are directed toward the opposite sex, homosexuality, where5feelings of love and sexual attraction are directed toward the same sex, and bisexuality,
where feelings of love and sexual attraction are directed toward both sexes (here inafter,a person whose sexual orientation is heterosexual shall be referred to as a "heterosexual
person" and a person whose sexual orientation is homosexual shall be referred to as a"homosexual person"). Gender identity is a concept that indicates how one recognizes

10

their own gender and what gender identity a person identifies with, and those whose
physical sex does not match their gender identity are referred to as transgender.
(2)
15

(i)

Plaintiffs 1 and 2 are both male homosexual persons, and live together at their place ofresidence. In June 2018, Plaintiffs 1 and 2 swore under oath that they are in a partnership
relationship using the "Partnership Oath System" which Fukuoka City had implemented,
and received a partnership certificate (Plaintiffs' Evidence B1, 2-1 and 2).
On July 5, 2019, Plaintiffs 1 and 2 filed a marriage notification at their place of residence,20

but the notification was rejected on the ground that they are of the same sex (Plaintiffs'
Evidence B3).
(ii)

Plaintiffs 3 and 4 are both male homosexual persons, and live together at their place ofresidence. In March 2020, Plaintiffs 3 and 4 swore under oath that they are in a25

partnership relationship using the "Partnership Oath System" that Kumamoto City had
implemented, and received a partnership certificate (Plaintiffs' Evidence C1).
On March 4, 2020, Plaintiffs 3 and 4 filed a marriage notification at their place ofresidence, but the notification was rejected on the ground that they are of the same sex

30(Plaintiffs' Evidence C2).
(iii)

Plaintiffs 5 and 6 are both female homosexual persons, and live together at their placeof residence. In March 2020, Plaintiffs 5 and 6 swore under oath that they are in a

35

partnership relationship using the "Partnership Oath System" that Fukuoka City had
implemented, and received a partnership certificate (Plaintiffs' Evidence D4).
On August 12 of the same year, Plaintiff 5 and Plaintiff 6 filed a marriage notification
at their place of residence, but the notification was rejected on the ground that they are40of the same sex (Plaintiffs' Evidence D5).
2

(3)Provisions of Law
The Civil Code provides that for a marriage notification to be accepted, it must meet thesubstantive requirements for marriage (Articles 731-736) and must not violate theprovisions of Article 739(2) of the Civil Code or other laws and regulations (such as the5

Family Register Act and the Enforcement Regulations of the Family Register Act) . The
Civil Code and the Family Register Act contain no explicit provision that the parties toa marriage must be of the opposite sex.
On the other hand, notification of a marriage between persons of the same sex is

10

considered unlawful under the current marriage system, in light of Article 739 (1) of the
Civil Code, which provides that a marriage shall take effect upon notification inaccordance with the Family Register Act, and Article 74(1) of the Family Register Act,
which provides that persons who intend to marry must notify the surname they will use
as husband and wife.

15(The provisions of the Civil Code and the Family Register Act that make same -sex
marriage unlawful are hereinafter collectively referred to as the "Provisions.")20

2

Issues and Summary of the Parties' Claims with respect to the Issues
The issues in this case are as follows, and a summary of the parties' claims with respect
to these issues is attached hereto as Appendix 2. The terms defined in Appendix 2 arealso used in the main text.
(1) Whether the Provisions are in violation of Article 13, Article 14(1), or Article 24 of
the Constitution;

25(2) Whether the failure to amend or repeal the Provisions is illegal in light of theapplication of Article 1(1) of the State Redress Act;
(3) The incurrence and amount of damages by the Plaintiffs; and(4) In relation to Plaintiff 6, whether there is a mutual guarantee under Article 6 of theState Redress Act.

30
III.

The Court's Judgment

1

Findings of Fact by the Court
The Court accepts the following facts based on the undisputed facts as well as theevidence set forth below and the entire import of oral arguments.

35(1)Knowledge on sexual orientation and homosexuality, etc.

(i)

Current knowledge on sexual orientation
Although the causes of sexual orientation formation are unclear, mental health experts

40

believe that in most cases sexual orientation is determined early in life or before birth3and that it is not a choice. It is also believed that mental illness and sexual orientation
are unrelated and that sexual orientation does not change by one's own volition or
through psychiatric treatment. (Plaintiffs' Evidence A2, 3, 466-1 and 2, 542; entire
import of oral arguments)
5(ii)

Evolution of knowledge on homosexuality(a)

In the West, under Christian values, there was a view that condemned homosexual
relationships, and when people who considered themselves homosexuals came forth in
the latter half of the 19th century, they were punished or considered ill and subjected to
medical treatment. Around this time, German psychiatrists wrote a book advocating the10pathologization of homosexuality. (Plaintiffs' Evidence A358, pp. 78-84)
The Diagnostic and Statistical Manual of Mental Disorders ("DSM") was published by
the American Psychiatric Association. Among such manuals, DSM-I, published in 1952,
categorized "homosexuality" as one of the diagnostic names for "sexual deviance" and15classified it under the broad category of "sociopathic personality disorders." DSM-II,
published in 1968, included a subcategory of "sexual deviance" under the broad categoryof"personality

disorders

and

other

non-psychotic

mentaldisorders,"and"homosexuality" was classified under such subcategory. The ninth edition of theInternational Classification of Diseases ("ICD") published by the World Health

20

Organization ("WHO") in 1975 (ICD-9) listed the classification name "homosexuality"
as one of the categories under the section of "sexual deviations and disorders."(Plaintiffs' Evidence A377)
25(b)

Since the early 1970s, doubts stemming from empirical studies of the pathologization ofhomosexuality and movements by homosexual people based on these doubts have led tothe depathologization of homosexuality. In 1973, the American Psychiatric Association
decided to delete the category of "homosexuality" from the DSM. However, DSM-II
included a new diagnostic name of "sexual orientation disorder," and DSM-III

30(published in 1980) revised the term "sexual orientation disorder" to a limited concept
known as "ego-dystonic homosexuality". DSM-III-R, published in 1987, deleted theterm "ego-dystonic homosexuality", and the American Psychiatric Association began totake the view that homosexuality is a "difference within the normal range ". In 1992, theWHO deleted the classification name "homosexuality" from ICD -10 and its updated

35

versions, instead using the classification name "ego-dystonic sexual orientation", andclearly stated that "sexual orientation itself should not be considered as a disorder" .
Today, the view that homosexuality itself is not an illness is the prevailing view among
psychiatric and psychological experts.

40
4

(For the above, Plaintiffs' Evidence A359, 377, 379-1 and 2, 382-1 and 2, 383-1 and 2,384, 385-1 and 2)

5

(iii)

Knowledge on homosexuality in Japan(a)

Before the Meiji Era
In Japan, there have been sexual relations between men, known as nanshoku or shudo,
since before the Meiji era. During the Edo period, prostitution by young boys became
widespread, and the shogunate of the time regulated nanshoku, but unlike in the West,the purpose was not to criminalize sexual contact between men (Plaintiffs' Evidence
A358, pp. 94-96).

10(b)

Early Meiji Era
After the Meiji Restoration, the Meiji government worked to reform society under thebanner of "bunmeikaika" ("civilization and enlightenment"), and defined the sexualvalues appropriate to civilization. These values did not immediately take hold, but in

15

1872, the Japanese government enacted the Sodomy Ordinance to prohibit the practiceof sodomy (sexual intercourse between men) which was in practice since the Middle
Ages, and banned it by law the following year because it was considered an unnatural
sin in the West (the law making sodomy a crime was repealed in 1882, based on theopinion that it should be judged through custom rather than as a criminal penalty.

20(Plaintiffs' Evidence A205, p. 5, 358, pp. 97-99)
In 1891, a translation of a German psychologist's work advocating the pathologizationof homosexuality ((ii)(a) above) began to be serialized in the "Journal of the Society of
Trial Medicine," and in 1894, a translated book with the title "Shikijo-kyo Hen"

25

(Compilation of Aphrodisiomania) was published based on this serialization (Plaintiffs'
Evidence A360, 361). Also, in 1906, "Shinsen Seishinbyo-gaku" (New Selection of
Mental Illness Studies) was published, in which homosexuality was regarded as a mental
illness (Plaintiffs' Evidence A362). In these works, homosexuality was introduced as apathological30

sexualpassion,and

its

treatment

methods

included

hypnosis,

administration of bromine, physical labor, cold water bathing, and change ofcircumstances (Plaintiffs' Evidence A361, 362).
(c)
35

The Taisho Era to the Heisei Era
In the Taisho era (1912-1926), Western sexual science became widespread throughtranslated books, and books on sexual desire studies began to be written. In 1913,"Shikijo-kyo Hen" was published for the general public under the title of "Hentai Seiyoku
Shinri" (Psychology of Perverted Sexual Desire), which became very influential in Japan,
and many sex magazines were published that regarded homosexuality as a perverted

40

sexual desire and as a mental illness. (Plaintiffs' Evidence A205)
5

The view that homosexuality is a perverted sexual desire took root in Japan, and the
Kojien dictionary, from the second edition published in 1969 to the third edition
published in 1983, described homosexuality as "a type of abnormal sexual desire thatloves the same sex and feels sexual desire for the same sex" (Plaintiffs' Evidence A358,

5

pp. 105, 307-1).
(d)Heisei Era and after
Following the movement in the West to depathologize homosexuality ((ii)(b) above), thethen Ministry of Health and Welfare adopted the WHO's ICD-10 in 1995, which states

10

that sexual orientation alone shall not be considered a disorder ((i)(b) above). In
response, the Japanese Society of Psychiatry and Neurology also announced its adoptionof ICD-10 in the same year. (Plaintiffs' Evidence A205, pp. 46, 385-1 and 2)
15(2)

Changes in the marriage system and examination of same-sex marriage(i)

The marriage system was born out of the desire to control by means of norms thepreservation of the species through a sexual union between a man and a woman. Eachera and society had its own marriage system to fulfill its needs.
The Western marriage system was premised on the biblical view of marriage, and the20

church had monopolized marriage as sacrament since the 10th century. However, with
the Protestant Reformation and the establishment of an absolute monarchy, the idea ofcivil marriage, in which the state controls the formation of marriage, emerged, and civil
marriage became the core form of marriage ever since. In modern civil society, all people
are entitled to equal status, and human social relations have become contractual

25

relationships between free-willed parties. While marriage too requires the parties'
consent as a condition for the formation of the contract, it persists as a system with its
content predetermined by the law.
(For the above, Defendant's Evidence 2)

30
(ii)

The marriage system in Japan and its requirements(a)

Before the enactment of the Civil CodeAround the beginning of the Meiji era, the substantive requirements for marriage were35

left to custom and no uniform substantive law existed. The Personal Status Part of Law
No. 98 of 1890, which was promulgated as the first civil code of Japan (the "Old Civil
Code"), provided for such requirements for the first time.

The Old Civil Code was notenacted, but it was succeeded by Law No. 9 of 1898 (the "Meiji Civil Code"). At thedrafting stage of the Personal Status Part of the Old Civil Code, there was an opinion to40

follow the Italian Civil Code and add "physical incapacity" as a cause of invalidity of6marriage due to not being able to result in the production of offspring, which is the
purpose of marriage. Nevertheless, such opinion was not followed in the end. (Plaintiffs'
Evidence A209, Defendant's Evidence 1)
In addition, there were academic theories at the time that the purpose of marriage was5

the harmonization of minds and the communal life of husband and wife, and notnecessarily to bear children (Plaintiffs' Evidence A211, 213).
(b)

At the time of enactment of the Meiji Civil Code
The Meiji Civil Code, "Part 4: Relatives," went into effect on July 16, 1898 ( Plaintiffs'

10

Evidence A209).
Marriage under the Meiji Civil Code was intended to follow Japan's traditional customs
while correcting their harmful and unclear aspects by law (Defendant's Evidence 3). The
Meiji government abolished the concubine system and the feudal status system to15

modernize the marriage system, but established the family register system, which is ameans of tracking and controlling the populace, structuring them into family units under
the Civil Code. The government maintained control through the family units by requiring
the consent of the head of the household and parents for marriage (Plaintiffs' EvidenceA214). Marriage in such cases was assumed to be between a man and a woman

20(Defendant's Evidence 4, 5).
There were academic theories at the time that the purpose of marriage was for thecommunal life of husband and wife, and not necessarily for the procreation of children(Defendant's Evidence 4). In addition, although "childlessness" was considered one of25

the grounds for desertion in divorce laws since the time of the Ritsuryo system, in the
Meiji Civil Code, a lack of reproductive capacity or failure to reproduce was not
stipulated as a reason to nullify marriage, or as grounds for annulment or invalidation of
marriage, or grounds for divorce (Plaintiffs' Evidence A209, 210, 553).
30(c)

At the time of the enactment of the Constitution of Japan (enacted on May 3, 1947)
The Constitution of the Empire of Japan, enacted in 1890, had no provision on marriage,
but the current Constitution (the Constitution of Japan), which was enacted as anamendment to the Constitution of the Empire of Japan, included Article 24 on mar riage

35

in order to establish individual dignity (freedom) and equality in family relations by
dismantling the "household" system, which was regarded as a hotbed of Japanesemilitarism (Plaintiffs' Evidence A136).
In the process of drafting Article 24 of the Constitution, Beate Sirota Gordon of the Civil

40

Affairs Division of the General Headquarters of the Allied Forces (GHQ) drafted7

detailed text for the improvement of women's status and the protection of families. The
draft stated that "...marriage and family shall be based on the idea that both sexes arelegally and socially equal, based on mutual consent, not on parental coercion, and oncooperation, not on male domination." The Japanese government was reluctant t oinclude provisions on family relations in the Constitution, and once tried to limit the5provisions to those on marriage, but the clause that corresponds to Article 24 (2) of thecurrent Constitution was eventually restored (Plaintiffs' Evidence A136). In thesubsequent amendment process, the provision went from the Japanese wording of"Marriage shall be solemnized on the basis of mutual consent between a man and awoman", to the wording in Article 22 of the proposed amendment to the Constitution of

10

the Empire of Japan: "Marriage shall be solely based on the consent of both sexes andshall be maintained through mutual cooperation on the basis that the spouses shall haveequal rights. In matters of spousal choice, property rights, inheritance, choice ofresidence, divorce and other matters relating to the family, laws shall be enacted on thebasis of individual dignity and the essential equality of the two sexes." After debate in

15

the Imperial Diet, the provision was enacted as Article 24 of the present Constit ution.
The purpose of the said amendment is said to be to ensure freedom of marriage andequality in marital relations, and there is no indication that same -sex marriage wasdiscussed in any way during the drafting process or in the deliberations in the Imperial

20

Diet.
(In addition to the foregoing evidence, Plaintiffs' Evidence A137, 214, Defendant's
Evidence 21, and the import of the overall arguments)
25(d)

At the time of the Civil Code amendment of 1947
With the enactment of the Constitution of Japan, the Meiji Civil Code was completely
amended in 1947 (Law No. 222 of 1947). The reason for this amendment was that withthe enactment of Articles 13, 14, and 24 of the Constitution of Japan, it became necessary

30

to amend the Meiji Civil Code, especially the Family Law and Inheritance sections,which contained numerous provisions in conflict with the said basic principles. The
amendment abolished the family head system, etc., which violated the above basic
principles. There is no evidence that same-sex marriage was mentioned during thedeliberations of the Diet concerning the said amendment. (Defendant's Evidence 6, 7)

35
In addition, according to the academic theories at the time, the intention to marry meant
the intention to form a cohabitation that is recognized as marriage in the common senseof the society, and there was a view that the intention toward same -sex marriage did notconstitute the intention to marry, and thus same-sex marriage was invalid. (Defendant's
40

Evidence 9, 10)8(3)Status of Same-Sex Marriage, etc. in Other Countries and Regions(i)

Various Systems concerning Personal Union Relationships between Persons of theSame Sex (Plaintiffs' Evidence A10)

5(a)Registered partnership system
As described in (1) above, in the West as well, homosexuality itself was denied basedon Christian values and medical knowledge, but changes in knowledge have led tochanges in the system. In 1989, the registered partnership system was established in
Denmark, and similar legal systems for the legal protection of same-sex couples(hereinafter collectively referred to as "Registered Partnership Systems", although the10name and specifics vary from country to country) have spread across European countries
and beyond.
In general, the Registered Partnership System provides same-sex couples with almost
the same legal effects as marriage, but it is considered to be different from marriage, and15

while some countries allow opposite-sex couples to use the system, most countries allow
only same-sex couples to use it. The system can be classified into three categories: thosewith independent provisions, those to which the provisions of marriage are appliedmutatis mutandis, and those in between. The scope of protection of the system withindependent provisions is more limited than that of marriage, and the scope of protection20

differs from country to country.
(b)

Legal Cohabitation, PACS, etc.
Marriage and Registered Partnership Systems offer a package of extensive legal rights
and obligations, including pursuant to property law, personal status law, social security

25

law, and tax law. Some countries have legal systems for couples who do not wish to havesuch strong legal effects, such as legal cohabitation (Belgium, Sweden), which gives
legal effects mainly in property law to certain cohabitation relationships, and PACS
(France), which allows couples to assert their status as a couple against third parties andthe state by establishing rights and obligations by contract of the parties and registering

30

them with a public authority. These systems can be used by either opposite -sex couples
or same-sex couples.
(c)35

Same-Sex Marriage
Marriage was traditionally performed between individuals of opposite sexes, but since
the Netherlands recognized same-sex marriage in 2000, the number of countries thatrecognize same-sex marriage has been steadily increasing. However, in some countries,
same-sex couples are treated differently from opposite-sex couples, mainly in terms ofwhether or not the presumption of illegitimacy applies, whether or not a child can be40

adopted, and whether or not assisted reproductive technology can be used.
9

(ii)

National and Regional Responses to Same-Sex Personal Unions, Especially SameSex Marriage(a)

The following countries and regions introduced systems recognizing same-sex marriage
in the years listed below (unless otherwise stated, the year of enactment of the law or5

the year in which the court determined to uphold it). As of October 2022, the percentageof the global population who lives in countries that recognize same-sex marriage wasapproximately 17%, and the percentage of countries that recognize same-sex marriage
constitute approximately 52% of global GDP. (Plaintiffs' Evidence A10-13, 109, 300,
453-455, 557-559)

102000 the Netherlands
2003 Belgium2005 Spain and Canada
2006 Sweden
2008 Norway

15

2009 Sweden
2010 Portugal, Iceland and Argentina
2012 Denmark2013 Uruguay, New Zealand, France, Brazil and the United Kingdom (England andWales)

20

2014 Luxembourg2015 the United States, Ireland and Finland
2016 Colombia (effective year)2017 Malta, Germany, Austria and Australia
2018 Costa Rica

25

2019 the United Kingdom (Northern Ireland) and Ecuador (effective year), Taiwan
2021 Switzerland, Chile2022 Slovenia and Cuba
30(b)

Judicial decisions, etc., were rendered by the judicial bodies that are equivalents to thesupreme court in the following countries and regions, holding the provisions of laws
recognizing same-sex marriage to be constitutional or laws and regulations that did notrecognize same-sex marriage to be unconstitutional.

35

In Canada (2004) and Spain (2012), judicial decisions etc., found that the provisions oflaws recognizing same-sex marriage are constitutional (Plaintiffs' Evidence A11).
Judicial decisions etc., have been rendered in South Africa (2006), the United States(2015), Colombia (2016), Austria (2017), Taiwan (2017), Costa Rica (2018), and40

Slovenia (2022), declaring laws that do not recognize same-sex marriage to be10

unconstitutional. (Plaintiffs' Evidence A11, 12, 14, 16-1 and 2, 327, 558)(c)

On the other hand, in Russia, the criminal code was amended to exclude homosexualacts from the scope of punishment in 1993, but in 2013, the " Act on Amendments to
Article 5 of the Federal Law ‘On the Protection of Children from Information Harmful

5

to Their Health and Development and to Certain Legislative Acts of the RussianFederation with the Aim of Protecting Children from Information that Promotes the
Denial of Traditional Family Values" was passed as a federal-level regulation, which
prohibits the promotion of homosexuality to minors. In 2014, the Russian Constitutional
Court ruled that the prohibition of the promotion of non-traditional sexual relations does10

not violate the Constitution.
In Vietnam, a revised Marriage and Family Law was passed in 2014 which excluded
same-sex marriage from the prohibitions on marriage, but also clearly stated that "thestate shall not recognize marriage between persons of the same sex."

15

In Italy, while the Constitutional Court ruled in 2010 that the provisions of the Civil
Code that do not recognize same-sex marriage do not violate the Constitution, it ruledin 2014 that the absence of another form of marriage in the country that properly sets
out the rights and obligations between same-sex parties is unconstitutional. The

20

European Court of Human Rights also held that the failure to provid e a legal framework
for the recognition and protection of same-sex couples constituted a violation of Article
8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the“European Convention on Human Rights”). In response to these judgments, theregistered partnership system was legalized in Italy in 2016. The legal rights and25

obligations resulting from the use of such a system basically determined by application
mutatis mutandis of the provisions related to marriage, but there are some differences,such as whether a fidelity obligation exists and whether there are provisions regarding
adoption.
30
In South Korea, in 2016, the Seoul Western District Court ruled that the issue of whether
or not same-sex marriage is permissible should be resolved by a legislative decision of
the National Assembly following the collection of public opinion, etc., and not througha new or analogous interpretation of the law by the judiciary.
35(For the above, Plaintiffs' Evidence A10)
(iii)

Actions by the United Nations, etc. (Plaintiffs’ Evidence A467)
After the European Court of Human Rights ruled in 1981 that Northern Ireland ’s sodomy40

law (a law prohibiting as a criminal offence sexual intercourse between homosexual11persons) was in violation of the right to respect for private life under Article 8 of theEuropean Convention on Human Rights, the court established a precedent that such
sodomy laws violated Article 8 of the Convention. In 1994, the UN Human Rights
Committee of the Covenant on Civil and Political Rights, in determining the conformityof the sodomy law to the Covenant on Civil and Political Rights (the “ICCPR”), ruled

5

that the concept of sexual orientation is included in “sex” or “other status” in thenondiscriminatory classification in Article 2(1) (enjoyment of rights without distinction)
and Article 26 (equality under the law) of the Covenant, and found in 2003 and 2007
that failure to provide at least the same level of guarantee as de facto marriage to same sex partnerships constitutes discrimination based on sexual orientation.

10

In 2011, the UN Human Rights Council adopted a resolution on “human rights, sexual
orientation and gender identity” in response to this interpretation of the European
Convention on Human Rights, subsequent standardization of the content of homosexual
rights by international human rights experts and joint statements on homosexuality as a15

human rights issue by various countries (Plaintiffs’ Evidence A392-1 and 2). The
resolution expressed serious concern about violence and discrimination on the basis ofsexual orientation and gender identity in all regions of the world, and requested the HighCommissioner for Human Rights to conduct a global investigation by December of thesame year into discriminatory laws and their administration, and violence against

20

individuals on the basis of sexual orientation and gender identity, and clearly state d that
the UN Human Rights Council would convene a panel to receive and discuss reports on
the investigation referred to above and would continue to address this issue.
25(4)Treatment of homosexual persons in Japan(i)

Responses of the government and local government entities(a)

Responses of the government
In 2000, the Act on the Promotion of Human Rights Education and Human Rights
Awareness-Raising was enacted, and the elimination of prejudice and discrimination on

30

the basis of sexual orientation was set forth in the basic plans based on the same Act andthe issues to be emphasized in awareness-raising activities (Plaintiffs’ Evidence A17 and
18). Since then, the government has promoted understanding of, and prohibition of
discrimination based on, sexual orientation and gender identity, in the basic plans basedon the Basic Act for Gender Equal Society (2010, 2015 and 2020), the Overview for

35

Comprehensive Measures to Prevent Suicide based on the Basic Act on Suicide
Prevention (2012, 2017 and 2022), notices on education issued by the Ministry of
Education, Culture, Sports, Science and Technology (2015 and 2016), guidelines basedon the Act on Equal Opportunity and Treatment between Men and Women in
Employment (2016) and notices based on the Act on Comprehensively Advancing Labor

40

Measures, and Stabilizing the Employment of Workers and Enriching Workers’
12Vocational Lives (2020) (Plaintiffs’ Evidence A184, 395, 397, 398, 400 and 555; theentire import of oral arguments). In addition, in 2011, the government endorsed theresolution on “human rights, sexual orientation and gender identity” referred to in (3)(iii)
above (Plaintiffs’ Evidence A392-1 and 2).
5(b)Responses of local governments
In response to trends in other countries, voices calling for the acceptance of same-sex
marriage have been rising within local governments, and a partnership recognition
system (collectively, the “Partnership System” for all similar systems introduced by
local governments in Japan, though there are various differences among them) was first10

introduced in Shibuya Ward in Tokyo in 2015, and thereafter in other local municipalities.
The Partnership Systems introduced in municipalities differ from each other in their
purposes, effects and forms; however, they are systems to officially recognize same-sex
couples for the main purposes of respecting human rights and dignity of individuals,
accepting diverse ways of life, and creating societies and communities where people can

15

live in peace and security. Unlike the Registered Partnership System, the Partnership
System does not give rise to any legal effects. In some municipalities, inter-municipal
use of the system is permitted, kinship certificates covering children of same-sex
partners are provided, and same-sex couples using the system are eligible for somegovernment services, such as to apply for municipal housing (Plaintiffs’ Evidence A10,20

164, 393, 394, 601, 602, 604).
The total number of local governments that have introduced Partnership Systems was
242 as of November 1, 2022, and the percentage of the total population of Japan covered
by Partnership Systems was 62.1% (the entire import of oral arguments).

25

In 2018, the Mayors Association of Designated Cities, a group of mayors from 20
designated cities in Japan, adopted a request to urge the government to provide support
to promote understanding of sexual minorities, including the Partnership Systems, andto encourage efforts by local governments , considering the growing prevalence of the

30

Partnership Systems in municipalities (Plaintiffs’ Evidence A44, 45).
(c)

Discussions in the Diet
Questions were raised at the Justice Committee of the House of Representatives in 200935

on the issuance of certificates by the Ministry of Justice enabling same-sex marriage in
foreign countries (Plaintiffs’ Evidence A55), and inquiries were made regarding thestatus of residence of same-sex partners in 2013 (Plaintiffs’ Evidence A56). Additionally,questions were raised at the plenary session of the House of Councillors in 2015
concerning the relationship between same-sex marriage and the Constitution (Plaintiffs’

40

Evidence A57). In response to the question in 2015, the then prime minister replied that13

Article 24 of the Constitution provides that marriage shall be based only on the mutual
consent of both sexes and therefore, it is not envisioned under the current Constitution
to allow same-sex couples to be legally married, and that whether or not a constitutional
amendment should be considered to allow same-sex marriage is a matter that affects thefundamental basis of the family in Japan and requires extremely careful consideration

5(Plaintiffs’ Evidence A57).
On June 3, 2019, the opposition parties submitted a bill to the Diet to amend part of the
Civil Code in order to develop legal systems necessary to allow same -sex marriage andrealize equality in marriage; however, the bill was abandoned without deliberation on

10

October 14, 2021 upon the dissolution of the House of Representatives. Though sincethen, questions concerning same-sex marriage and the legal protection of same-sex
couples have been raised in the Diet committees and plenary sessions, the government’s
responses in general have not changed from that as set out above (Plaintiffs’ Evidence
A58-63, 69-71, 83-88, 110-112, 267-291, 405, 424-426, 636, 637, 639-653).

15
(ii)

Surveys of opinions on same-sex marriage

(a)

2015
According to a survey conducted by a group led by Professor Kazuya Kawaguchi ofHiroshima Shudo University (“Professor Kawaguchi”) of men and women aged 20 to

20

79 nationwide (1,259 valid respondents), 14.8% were in favor of “legal recognition ofsame-sex marriage” and 36.4% were somewhat in favor, while 25.3% were somewhat
against, 16.0% were against, and 7.5% did not answer. 72.3% of the respondents in their
20s and 30s and 55.1% in their 40s and 50s were in favor or somewhat in favor, while
32.3% in their 60s and 70s were in favor or somewhat in favor and 56.2% were against25

or somewhat against (Plaintiffs’ Evidence A74, pp.152 and 155).
In a public opinion poll of voters conducted by The Mainichi Newspaper Co., Ltd. (1,018
valid respondents), 44% supported “same-sex marriage,” 39% opposed it, and 17% did
not answer (Plaintiffs’ Evidence A75).

30

In a public opinion poll conducted by The Asahi Shimbun Company, 41% answered “yes”
to the question, “Do you think marriage between men and between women should be
legally recognized?” and 37% answered “no” (Plaintiffs’ Evidence A266).
35
(b)

2017
According to a public opinion poll conducted by the Japan Broadcasting Corporation(2,643 valid respondents) of citizens aged 18 or older, 50.9% “agreed” with the statement,“Marriage between men and between women should be recognized, ” while 40.7%

40“disagreed”, and 8.4% responded “I don’t know. No answer.” (Plaintiffs’ Evidence A76,
14

77).
According to a public opinion poll of voters conducted by The Asahi Shimbun Company,
49% responded that same-sex marriage should be legally recognized, while 39%
responded that it should not be legally recognized. More than 70% of the respondents

5

aged 18-29 and in their 30s were in favor of the “recognition of same-sex marriage,”while those in their 60s who were “in favor” and “against” constituted an even split at
42% each, and 24% of those aged 70 were “in favor” and 63% were “against” (Plaintiffs’
Evidence A78, 79).
10
(c)

2018
Based on the National Survey on Family conducted among married women by the
National Institute of Population and Social Security Research (6,142 valid respondents),
20.3% of the respondents “completely agreed” that “marriage between men and between
women (same-sex marriage) should be legally recognized,” 49.2% “somewhat agreed,”15

while 22.2% “somewhat opposed” and 8.3% “completely opposed” it (Plaintiffs’
Evidence A104, p.72).
(d)

2019
According to a survey conducted by a group led by Professor Kawaguchi (2,632 valid

20

respondents) of men and women aged 20 to 79 nationwide, 25.8% were in favor of “legal
recognition of same-sex marriage” (the same question as in (a)) and 39.0% were
somewhat in favor, while 19.4% were somewhat against, 10.6% were against, and 5.2%
did not answer. 81% of the respondents in their 20s and 30s and 74% of those in their
40s and 50s were in favor or somewhat in favor, while 47.2% of those in their 60s and25

70s were in favor or somewhat in favor, and 43.4% were against or somewhat against(Plaintiffs’ Evidence A170).
According to an online survey of sexual minorities conducted by Professor Yasuharu
Hidaka, School of Nursing, Takarazuka University (10,769 valid respondents), 60.4% of

30

the respondents wanted the same legal marriage to be open to same-sex couples as toopposite-sex couples (Plaintiffs’ Evidence A172).
According to a survey conducted by the “Survey on Coexistence and Diversity of Workand Life” research team on Osaka citizens aged 18-59 (4,285 valid respondents), 51.5%

35

were “in favor” of a “system that allows same-sex couples to legally marry” and 31.3%
were “somewhat in favor,” while 8.9% were “somewhat against” and 6.8% were “against”(Plaintiffs’ Evidence A105, p. 54).
40

(e)

2020
15

According to a survey of voters nationwide conducted by The Asahi Shimbun Company(2,053 valid respondents), 46% “supported” or “somewhat supported” same -sex
marriage, while 31% answered “I don’t know”, and 23% “opposed” or “somewhat
opposed” it. This showed that positive opinion had increased by 14% compared with the2005 survey of voters. Even among supporters of the ruling Liberal Democratic Party,

541% were “in favor” or “somewhat in favor,” while 29% “opposed” or “somewhat
opposed” it. (Plaintiffs’ Evidence A171)
(f)

2021
In a public opinion poll of voters nationwide conducted by the Asahi Shimbun Company

10(1,564 valid respondents), 65% answered “yes,” while 22% answered “no” to thequestion of “whether marriage between men and between women should be legally
recognized” (the same question as in (a) above), of which more than 80% of the
respondents aged 18-29 and in their 30s answered “yes,” while 66% of those in their 60s
answered “yes,” and 37% and 41% of those aged 70 and older answered “yes” and “no,”15

respectively (Plaintiffs’ Evidence A266, 409). According to a nationwide public opinion
poll conducted by the Japan Broadcasting Corporation (1,508 valid respondents) of thecitizens aged 18 or older, 27.9% were “in favor” of the opinion that marriage between
men and between women should also be recognized and 8.8% were “somewhat in favor,”
while 18.6% were “somewhat opposed” and 18% were “opposed” to it (Plaintiffs’

20

Evidence A624-1 and 2).
(g)

2022
According to a public opinion poll of voters nationwide conducted by The Mainichi
Newspaper Co., Ltd. (1,315 valid respondents), 46% answered “yes”, 37% answered “I

25

don’t know”, and 16% answered “no” to the question of whether same-sex marriage
should be legally recognized (Plaintiffs’ Evidence A625-1 and 2).
(iii)
30

Act on Special Cases in Handling Gender Status for Persons with Gender Identity
DisorderArticle 3(1) of the Act on Special Cases in Handling Gender Status for Persons with
Gender Identity Disorder (Act No. 111 of 2003, effective July 16, 2004) requires that aperson with gender identity disorder be “not currently married” (Item 2 of the same
paragraph) in order to be eligible for a ruling of a change in the recognition of the ir

35

gender status. The Supreme Court held that said provision is not unreasonable because
it is based on considerations that allowing a change in the recognition of the genderstatus of a person who is currently married may cause confusion in the current order inmarriage, which is only recognized between individuals of the opposite sex, andtherefore it cannot be said to be beyond the scope of the discretion of the Diet nor does40

it violate Article 13, Article 14(1), or Article 24 of the Constitution (decision of the16Second Petty Bench of the Supreme Court, March 11, 2020 (Ku) No. 791 ).
(iv)
5Survey on Attitudes toward Marriage(a)According to the 2005 edition of the White Paper on the National Lifestyle by the
Cabinet Office, among the unmarried respondents aged 18-40, more than 90%
answered that they "intend to get married someday" to the question "Which of thefollowing do you think describes your views on marriage in your lifetime?" inevery survey year from 1982 through 2002. In the same survey, the percentage of
respondents who answered "yes" to the question "Do you think your friends who

10

are married seem happy?" exceeded 50% in all age groups (Plaintiffs' Evidence
A301, p.16).
(b)

According to the Ministry of Health, Labour and Welfare's 2013 White Paper on
Health, Labour and Welfare, the percentage of respondents who answered t hat "it15

is natural for people to get married" in public opinion surveys was about 35% in
2008, down about 10% from 1991. While the percentage of respondents who
agreed with the idea that "people do not necessarily need to get married" hasincreased, the percentage of unmarried respondents who answered that they
"intend to get married someday" exceeded 90% in every survey year from 1982

20

through 2002 (Plaintiffs' Evidence A303, pp.59, 66).
(c)

According to the Cabinet Office's 2014 Survey on Attitudes toward Marriage andFamily Formation, when asked "What are your thoughts on marriage?" ofunmarried and married men and women aged 20-39, 14% responded "I should

25

definitely get married," 54.1% responded "I should get married if possible," 29.3%
respond "I don't have to," 1.7% responded "I don't need to," and 0.9% gave "noresponse" (Plaintiffs' Evidence A304, p.35).
Among the unmarried persons who wanted to get married, 70.0% "wanted to have30

a family" and "wanted to have children," 68.9% "wanted to be with the person
they love," 49.3% "did not want to be alone in old age," and 49% "wanted toreassure their parents and relatives" (Plaintiffs' Evidence A304, p.43).
35(d)According to the National Institute of Population and Social Security Research's
2015 Basic Survey on Social Security and Population Issues (National Survey on
Marriage and Childbearing), regarding the question asked to unmarried
respondents aged 18-34, "Which of the following do you think describes yourviews on marriage in your lifetime?", 85.7% of male and 89.3% of female

40

respondents answered that they "intend to get married someday" . Also, 64.3% of17male and 77.8% of female respondents answered that "there are merits to being
married." Among such merits, "to be able to have one's own children and family"
was the most popular, with 35.8% of male and 49.8% of female respondents giving
this answer (Plaintiffs' Evidence A305).
5(v)

2019 Marriage Statistics
According to government surveys and data from the National Institute of Population andSocial Security Research, the following facts are known about the state of marriage inJapan as of 2019:10(a)There were 599,007 marriages, meaning the marriage rate (the annual number ofmarriages divided by the total population and multiplied by 1,000) was 4.8%,
indicating a downward trend after peaking in 1972 when there were over 1 million
marriages and the marriage rate was over 10% (Plaintiffs Evidence A306, 309-4).

15(b)

The total fertility rate (the sum of age-specific fertility rates for women aged 1549) was 1.36%, declining from 2.14% in 1973 (Plaintiffs' Evidence A308).
Households with children accounted for 21.7% of all households, decreasing yearby-year from 46.2% in 1986 (Plaintiffs' Evidence A307, p.7).

20
The percentage of children born out of wedlock was approximately 2.3%
(Plaintiffs' Evidence A309-3).
(vi)

Trends in Countries and Organizations

25(a)

In October 2008, May 2013, August 2014, and November 2022, the United
Nations Human Rights Committee and Committee on Economic, Social andCultural Rights issued summary findings to Japan, expressing concerns about thehuman rights situation of same-sex couples and requesting specific measures toguarantee their rights. Among them, the Human Rights Committee, in its summary

30

findings issued in November 2022, was concerned about reports that lesbian, gay,bisexual, and transgender persons faced discriminatory treatment, particularly inpublic housing, change of gender on family registers, access to legal marriage,
and treatment in correctional institutions (Articles 2 and 26 of the ICCPR) andthat one of the things that member states should do is to ensure that same -sex

35

couples enjoy all the rights provided for in the ICCPR in all of their territories,
including access to public housing and same-sex marriage (Plaintiffs' Evidence
A80-1 to 82-2, 560-1 and 2).
40(b)

In September 2018, the American Chamber of Commerce in Japan recommended
18

that the Japanese government recognize the right to marry for same -sex couples.
This opinion has been endorsed by the Australian and New Zealand Chamber ofCommerce in Japan, the British Chamber of Commerce in Japan, the CanadianChamber of Commerce in Japan, the Danish Chamber of Commerce in Japan, theIrish Chamber of Commerce in Japan, the Belgian-Luxembourg Chamber of5

Commerce in Japan, the European Business Council in Japan, and many Japanesecompanies and law firms as of November 2022 (Plaintiffs' Evidence A53, 54, 614).
(c)

In 2022, the Japan Federation of Bar Associations compiled a written opinion
stating that the government should recognize same-sex marriage and promptly

10

amend related laws and regulations, and submitted it to the Speaker of the Houseof Representatives, the Speaker of the House of Councillors, the Prime Minister,and the Minister of Justice (Plaintiffs' Evidence A48, 49). By November 2022,
five federations of bar associations and 15 bar associations in various regions
issued opinion letters, presidential statements, declarations, and other documents

15

requesting the realization of same-sex marriage. (Plaintiffs' Evidence A46, 47, 103,226-232, 292-296, 450-452, 541, 621, 622)
2

Issue (1) (Whether the Provisions are in violation of Article 13, Article 14 (1), or
Article 24 of the Constitution)

20(1)

The essence of marriage lies in both parties entering into a shared life with the sincere
intention to establish a permanent mental and physical union (see the Supreme Court
Decision Case No. (O) 260 of 1986 on September 2, 1987, Minshu Vol.41, No.6, at

25

p.1423). [1] Marriage takes effect upon the filing of a notification in accordance with
the Family Registration Act by both parties entering into a shared life with theaforementioned intention (Article 739(1) of the Civil Code). [2] The Civil Code confers
rights and obligations between husband and wife, such as relatives (Article 725), joint
parental authorities (Article 818), the right to inheritance including statutory reserved

30

share of a spouse (Article 890, Article 900, Items 1 to 3 and Article 1042), division ofproperty upon divorce (Article 768), the right of spousal residence (Article 1028), theprinciple to share the same surname (Article 750), the duty to live together, cooperate
and provide assistance to each other (Article 752), the right to rescind contracts between
husband and wife (Article 754), property relations between husband and wife (Article

35755), the requirements for the perfection of prenuptial property agreements (Article 756),
sharing of living expenses (Article 760), joint and several liability for debts incurred forhousehold necessities (Article 761), and ownership of property between husband andwife (Article 762). [3] Marriage also provides official recognition of family relations
through the family register system (Article 6 of the Family Registration Act), based on

40

which [4] various rights including benefits such as spousal deductions for income and19residence taxes (Article 2, Article 83, Article 83-2 of the Income Tax Act, Article 34 of
the Local Tax Act), reduction of inheritance tax (Article 19-2 of the Inheritance Tax Act),status of residence as spouses (Article 2(2) of the Immigration Control and Refugee
Recognition Act), granting of survivor's pension (National Pension Act, Ar ticle 37;
Employees' Pension Insurance Act, Article 59), provision of survivor's benefits under5

the crime victims aid system (Article 5(1)(i) of the Act on Measures Incidental to
Criminal Proceedings for Protecting the Rights and Interests of Crime Victims ),protection under the Act on the Prevention of Spousal Violence and the Protection ofVictims, and the privilege of refusing to testify in court proceedings (Article 196 of theCode of Civil Procedure; Article 147 of the Code of Criminal Procedure).

10

According to the above, under the current law, marriage is a system whereby, throughthe parties’ notification to the mayor of the municipality of their sincere intention to live
together for the purpose of permanent mental and physical union ([1] above), and themayor’s acceptance of the notification, a status with various legal rights and obligations

15

between the parties is created ([2] above), publicly certified ([3] above), and afforded
public protection ([4] above).

20

(2)

Whether the Provisions violate Article 24(1) of the Constitution(i)

The Plaintiffs argue that, in light of today's changing social conditions and the intent of
Article 24(1) of the Constitution, the freedom of homosexual persons to marry is also
guaranteed, and therefore, the Provisions which deny marriage to same-sex couples
infringe the freedom of marriage and violate Article 24(1) of the Constitution.

25

Whether to marry and when and with whom to marry must be left to the free a nd equal
decision of the individual parties, and in light of the significant legal effects conferredthrough marriage and the public's sentiments etc. towards the respect for legal marriage,
it is recognized that this is an interest that should be respected in light of the intent of
Article 24(1) of the Constitution (see Case No. 2013 (O) 1079, Supreme Court Grand

30

Bench judgment of December 16, 2015, Minshu Vol.69, No.8, p. 2427 ).
In examining whether Article 24(1) of the Constitution can be said to guarantee thefreedom of marriage between homosexual persons, it must be understood from the words“both sexes” and “husband and wife” in Article 24(1) of the Constitution that this Article

35

assumes marriage between a man and a woman. Even taking the legislative process into
consideration, as stated in 1(2) above, the main purpose of Article 24 of the Constitution
at the time of enactment was to realize freedom and equality in family matters, inparticular the improvement of the status of women and protection of the family byabolishing the household system, and same-sex marriage was not discussed. Given the40

foregoing and the fact that the words “man and woman” and “both sexes” were used, as
20

well as the lack of any evidence of references to same-sex marriage in the Diet’s
deliberations at the time of the subsequent amendment of the Civil Code in 1947, it canbe recognized that same-sex marriage was not contemplated at the time of the enactmentof Article 24(1) of the Constitution, and while this Article is not intended to preclude
same-sex marriage, it is fair to conclude that “marriage” as used in this Article refers to5marriage between a man and a woman and does not include same -sex marriage. Further,as stated above, marriage is the nation’s certification of the cohabitation between two
persons who choose to be bound by a permanent mental and physical union ([1] above),and as stated in [2] to [4] above, it is a legal system in which its requirements areprescribed by various laws based on the will of the individuals and rights and obligations

10

arise uniformly when these requirements are met, and not something in which its
requirements and effects can be determined solely by the will of the individuals.
Therefore, even if the freedom of marriage is an interest that should be respected under
the Constitution, it is difficult to go further to say that it constitutes a right under theConstitution.

15
(ii)

The Plaintiffs argue that “marriage” in Article 24(1) of the Constitution should beinterpreted to include same-sex marriage under an expanded interpretation or application
by analogy of such Article.

20
It is true that social norms, public awareness and values regarding marriage can change,
and if, based on these changes in social norms etc., same-sex marriage and heterosexual
marriage become no different as a matter of fact and from the perspective of the public’s
social acceptance, then there is room to interpret same-sex marriage as being included
25

in “marriage”. According to the above Findings of Fact, there are a considerable numberof foreign countries that have legalized same-sex marriage, and in our country, it can berecognized that there is a movement to afford same-sex marriage the same legal
protection as heterosexual marriage and to eliminate prejudice against homosexuality,
such as the introduction of partnership systems in many local governments. However,30

according to the results of public surveys etc. in Japan, those opposed to the introductionof same-sex marriage are in close competition with those in favor among respondents
aged 60 or over, and there are still a considerable number of people overall who areopposed, indicating there is still a conflict of values regarding same-sex marriage. Whileit can be said that social norms and values regarding marriage are changing, some of35

these opposing opinions can be ascribed to the traditional view that marriage is apersonal union between a man and a woman, and it is difficult to recognize that samesex marriage has gained the same level of social acceptance as heterosexual marriage.
Therefore, it is difficult at least at this time to interpret “marriage” under Article 24(1)40of the Constitution to include same-sex marriage, and the Plaintiffs’ above argument21

cannot be accepted.
(iii)

Based on the above, even taking into consideration the fact that perceptions, publicawareness and social conditions regarding homosexual persons have changed incomparison to when the Constitution was enacted (1(1), (3) and (4) above), it cannot be

5said that Article 24(1) of the Constitution goes beyond the above literal interpretationand guarantees the freedom of homosexual persons to marry.
Therefore, the Provisions cannot be said to violate Article 24(1) of the Constitution.
10(3)

Do the Provisions violate Article 13(1) of the Constitution?
The Plaintiffs argue that the Provisions, which do not allow same -sex couples to marry,
violate the freedom of marriage of same-sex couples, infringe on their right of personalautonomy to form a family, and violate Article 13 of the Constitution.

15
As stated above, marriage creates various rights and obligations that are effective as
between oneself and the other individual or an administrative agency etc. ([2] and [4]above), and being married or not and whether the marriage system is available or nothave an impact on an individual’s rights and obligations. In addition, marriage is the20nation’s certification ([3] above) of the cohabitation between oneself and another whom
one chooses to be bound with by a permanent mental and physical union ([1] above),and under the current law, there is no system other than the marriage system under which
one chooses another with whom to form a permanent mental and physical union and iscertified as a family. In Japan, various systems have been established with the family as

25

the basic unit of life, and there are many systems beyond those mentioned in [2] and [4]above with respect to public rights and matters that provide various benefits in private
matters by certifying the family status (for example, explanation and consent rights withrespect to family members in connection with medical care, purchase of real estate,confirmation of family status in connection with the review of various contracts such as

30

real estate leases or insurance, designation of family members as joint owners or
beneficiaries of insurance and other benefits, consideration of family status in workplacetransfers, and participation in ceremonial functions such as being able to use the samegravesite (Plaintiffs' Evidence A554 and the Plaintiffs themselves)). These kinds ofbenefits are not conferred publicly but nonetheless arise uniformly as a result of35

certification ([3] above), and therefore not being able to marry, which is the basic unit
for giving rise to such benefits, and not being able to cause these benefits to arise atone’s own will is recognized as an impermissible disadvantage (the various benefits insocial life that one can receive from certification, which is the effect of marriage, arehereinafter collectively referred to as the “Benefits of Certification”). In light of the40

above, the ability to use the marriage system is a matter that affects an individual22throughout their lifetime, and given the importance of marriage in the public’s mind
(1(4)(iv) above), it is recognized that deciding whether to marry and when and withwhom to marry at one’s own will is a personal moral interest that should be respected
for homosexual persons as well.
5
However, as described in [2] through [4] above, marriage is a legal system whereby
requirements are prescribed by various laws based on the will of the individuals andrights and obligations arise uniformly when these requirements are met, and not
something in which its requirements and effects can be determined solely by the will of
the individuals. Similarly, the formation of a family based on marriage is not something10

for which the requirements and effects can be determined solely by the will of theindividuals.

The reason why the requirements regarding marriage are set out by law isbecause it is a natural consequence of the fact that marriage itself is a system underwhich the nation confers rights and obligations to a certain relationship, and ahomosexual person’s freedom of marriage and their right of personal autonomy to form

15

a family through marriage cannot go as far as being interpreted to be a constitutionalright guaranteed by Article 13 of the Constitution. Therefore, the Provisions do not
violate Article 13 of the Constitution.
20(4)

Do the Provisions violate Article 14(1) of the Constitution?

(i)

Article 14(1) of the Constitution provides for equality under the law, and this provision
should be construed to prohibit discriminatory legal treatment unless it is based onreasonable grounds in accordance with the nature of the matter (see Case No. 1962 (O)1472, Supreme Court Grand Bench judgment of May 27, 1964, Minshu Vol. 18, No. 4, p.

25

676, Case No. 1970 (A) 1310, Supreme Court Grand Bench judgment of April 4, 1973,
Keishu Vol. 27, No. 3, p. 265, and Case No. 2013 (O) 1079, Supreme Court Grand Bench
judgment of December 16, 2015, Minshu Vol. 69, No.8, p.2427).
Further, Article 24(2) of the Constitution delegates the establishment of a specific system

30

regarding matters concerning marriage and the family to the Diet's reasonable legislative
discretion in the first instance, and at the same time requires and provides guidance thatsuch laws must be enacted from the standpoint of individual dignity and the essential
equality of the sexes, thereby placing a clear limitation on such discretion. Therefore,
with respect to differential treatment on matters concerning marriage and the family,

35

even in light of the above discretionary power granted to the legislative branch, it canbe said that such differential treatment is in violation of Article 14(1) of the Constitution
if there are no reasonable grounds for such treatment (see Case No. 2013 (O) 1079,
Supreme Court Grand Bench judgment, December 16, 2015, Minshu Vol. 69, No.8,
p.2427).

40
23

(ii)

Existence of differential treatment under the Provisions
As stated in II 1(3) above, since same-sex marriage is not recognized under theProvisions and homosexual persons therefore cannot use the marriage system, it isunderstood that the Provisions result in differential treatment between homosexual andheterosexual persons based on sexual orientation.

5

The Plaintiffs also argue that the Provisions constitute differential treatment based on
gender. However, under the Provisions, both men and women can each marry persons of
the opposite sex and cannot marry persons of the same sex, and there is no differential
treatment between men and women based on gender. Therefore, the above argument by

10

the Plaintiffs cannot be accepted.
The Defendant argues that there is no differential treatment under the Provisions sincehomosexual persons are also able to marry persons of the opposite sex, that theProvisions are neutral with respect to sexual orientation, and that even if a difference

15

arises between homosexual and heterosexual persons based on sexual orientation it is
only a de facto or indirect consequence and thus cannot be considered to be differential
treatment. However, as stated above, the essence of marriage is for both individuals tolive communally with an honest intention of a permanent mental and physical union,
whereas sexual orientation relates to the object of a person’s love and sexual affection

20

and determines the object of the aforementioned mental and physical union, andtherefore, even if homosexual persons could marry persons of the opposite sex, suchmarriage would not possess the essence of marriage, and homosexual persons would not
be able to use the marriage system as long as their love and sexual affection is notdirected toward those of the opposite sex. Therefore, since the Provisions do not25

recognize marriage between persons of the same sex, there is differential treatment inthat homosexual persons cannot use the marriage system, and since sexual orientation islinked to the essence of marriage, this consequence cannot be said to be de facto or
indirect, and accordingly the above arguments by the Defendant cannot be accepted.
30
As mentioned above, while the Provisions result in differential treatment based on sexual
orientation, as stated in II 1(1) and III 1(1) above, in most cases sexual orientation isdetermined early in life or before birth regardless of the will of the individual, and it is
medically evident that it is difficult to change one’s sexual orientation by one's own willor through psychiatric therapy. Therefore, it is necessary to carefully consider whether

35

there are reasonable grounds for there to be differentiation with respect to therequirements for marriage on the basis of a matter that is not within the individual’s
choice or ability to modify.
40

(iii)

Whether the differential treatment under the Provisions is reasonable
24

(a)

As a result of the Plaintiffs not being able to marry under the Provisions, they are unable
to create the various rights and obligations that are effective throughout their lifetime as
between oneself and the other individual or an administrative agency etc. ([2] and [4]above), and they are unable to obtain the Benefits of Certification even as to private
matters ([3] above), which effects can only be realized through marriage. In light of the5importance of marriage in the public’s mind (1(4)(iv) above), it can be said that thePlaintiffs have suffered a serious disadvantage by not having access to the marriage
system and not having the opportunity to enjoy it.
The Defendant argues that the above disadvantages can be mitigated or avoided. It is

10true that [2] above can be mitigated to a certain extent by stipulating each individual’s
rights and obligations or by contract etc. regarding property division in the eve nt ofdivorce or regarding inheritance. However, the economic burden of conducting various
procedures and possible claims for infringement of intestate rights at the time ofinheritance etc. remain. In addition, as stated in 1(4)(i) above, although many local

15

governments have introduced partnership systems, unlike Registered Partnership
Systems in foreign countries, these systems do not have legal effects and do not replace
the functions of marriage set out in [2] and [4] above. Although these partnershipsystems could be expected to serve the role described in [3] above as a certification by
the local government, given that there are currently few concrete examples of such use

20

and their effects are varied depending on the local government and circumstances(Plaintiffs’ Evidence A202 and the Plaintiffs themselves), it is difficult to say that they
can replace the function described in [3] above. Further, although homosexual persons
are not prevented from living communally with an honest intention of a permanentmental and physical union even if they do not marry ([1] above), the creation of rights

25

and obligations ([2] and [4] above) and the benefit of having their communal life
certified by a national system ([3] above) are important for their social life, as mentioned
above, and this is not resolved by a communal life without marriage, and therefore
cannot be said to be mitigating or exempting the above disadvantages (in the case of defacto marriage between persons of the opposite sex, the parties have voluntarily waived30

the Benefits of Certification etc. of marriage, so the disadvantages of same-sex couples
not being able to marry cannot be understood in the same way as in the case of de facto
marriage). The Defendant's argument above cannot be accepted.
35(b)

However, as stated above, "marriage" in Article 24(1) of the Constitution refers tomarriage between persons of the opposite sex, and it is understood that the freedom tomarry between persons of the opposite sex should be respected, and it is understood that
Article 24(2) of the Constitution requests legislation for marriage between persons of
the opposite sex. As stated in 1(2) above, the current system of marriage, including the40

Provisions, is based on the system of marriage first established in the Meiji Civil Code,25

and has been amended to abolish the head of household system, etc., in response to therequest of Article 24 of the Constitution. However, in light of the academic
understanding from the Old Civil Code to the time of the enactment of the current Civil
Code (see 1(2)(ii) above) and the existence of regulations pertaining to the presumptionof illegitimacy and the parent-child relationship in the current Civil Code, the purpose

5of the marriage system at that time, which needed to be clarified in relation to the legal
effects of marriage and the family registration system, was for the state to protect the
reproduction between a man and woman (husband and wife) and the upbringing of theirchildren by limiting the scope to that of a union where biological reproduction was
possible. It is recognized that this purpose of protecting reproduction and the upbringing

10of the child is still important today, and the socially accepted notion at that time thatmarriage was between a man and a woman is changing, but as stated above, it cannot be
said that this notion has been already lost today. In this light, it can be said that theProvisions, which were established in accordance with the legislative requ irement ofheterosexual marriage under Article 24(2) of the Constitution, are based on such a15

requirement of the Constitution, and therefore, there is a rational basis for the differential
treatment under the Provisions.
Therefore, even if it is true that the situation where the Provisions recognize only
heterosexual marriage and not same-sex marriage constitutes distinctive treatment based20

on sexual orientation and it requires careful judgment to decide whether it is reasonable,
it cannot be said that the Provisions exceed the scope of legislative discretion which
would amount to violation of Article 14(1) of the Constitution.
25(c)

The Plaintiffs argue that the differential treatment under the Provisions is based on the
grounds enumerated in the second sentence of Article 14(1) of the Constitution ("sex"or "social status"), and that whether the above different treatment has a rational basis
should be strictly examined. In light of the fact that the disadvantages to homosexual
people are enormous and that the purpose of the institution of marriage is to protect

30

communal life, it is clear that there is no rational basis for the above differential
treatment.
However, as stated above, "marriage" in Article 24(1) of the Constitution refers toheterosexual marriage, and Article 24(2) of the Constitution requires the establishment

35

of a legal marriage system for heterosexual marriage, while it is understood that theprotection under Article 24(1) of the Constitution does not extend to same-sex marriage
and the same protection as heterosexual marriage is not provided. Therefore, even inlight of the degree of disadvantage to homosexual individuals and the fact that one ofthe purposes of the marriage system is considered to be the protection of communal life,40

it is difficult to say that the Provisions, which limit marriage to heterosexual marriage
26

and do not recognize same-sex marriage, exceed the scope of legislative discretion andviolate Article 14(1) of the Constitution.
The above argument of the Plaintiffs cannot be adopted.
5(5)

Are the Provisions contrary to Article 24(2) of the Constitution?

(i)

As stated above, Article 24(2) of the Constitution leaves the establishment of a specificsystem of marriage and family to the reasonable legislative discretion of the Diet in thefirst instance, and, in legislating on such matters, it sets forth the limits of that discretion10by requiring and guiding the Diet to base its legislation on the dignity of the individual
and the essential equality of the two sexes. Accordingly, whether or not the Provisions
can be approved as being in conformity with Article 24(2) of the Constitution must be
determined by examining the purpose of the Provisions and the effects of adopting asystem pertaining to the Provisions, and by considering whether or not the Provisions

15

lack rationality in light of the dignity of the individual and the essential equality of thetwo sexes, and whether or not they are beyond the legislative discretion of the Diet.
As stated in 2(1) above, although matters concerning the personal union of same-sex
couples are not recognized as freedom of marriage under Article 24 (1) of the20

Constitution, they fall under the category of "other matters concerning marriage andfamily" under Article 24(2) of the Constitution since they are the questions on how totreat the will to live together with a sincere intention for permanent mental and physicalunion between same-sex persons in light of various provisions concerning marriage andfamily. As stated in the drafting process described in 1(2) above, one of the underlying

25

principles of Article 24 of the Constitution is the dignity of the individual, which should
be respected regardless of whether a person is heterosexual or homosexual. Therefore,
it should be construed that matters concerning same-sex couples are defined by the limitsof discretion under Article 24(2) of the Constitution at the same time are left to the legal
discretion of the Diet.

30
In response, the Defendant argues that Article 24(2) of the Constitution, as with Article
24(1), contains the word "both sexes" and should be construed as requesting thelegislature to establish a system to realize marriage between opposite -sex couples on thepremise that marriage is a personal union of these couples. However, same-sex couples
35

are in the same relationship of personal union as opposite-sex couples. Further, even if
it is understood that "marriage" is limited to heterosexual marriage as stated above,"other matters concerning the family" are covered along with marriage. Also, eventhough the concept of "family" is considered to be centered on the whole union of
husband and wife and their children, given the process of enactment of Article 24 of the40

Constitution, this does not now have to be so limited when the forms of marriage and27

family are diversifying, and public awareness of the nature of marriage and family isdiversifying accordingly, and the inclusion of same-sex couples in "marriage and othermatters relating to the family" is a natural reading of this Article. Moreover, "dignity of
individuals" is mentioned together with "intrinsic equality of both sexes" as thelimitation of discretion in Article 24(2) of the above Constitution, and as for dignity of5

individuals, homosexual persons should be respected the same as heterosexuals. The
above argument by the Defendant cannot be accepted.
(ii)
10Matters related to marriage and family should be determined based on a comprehensive
judgment, taking into consideration various factors in social situations, including
national traditions and public sentiment, and with an eye to the overall discipline of therelationship between husband and wife and between parents and children in each era. In
particular, personal interests and substantive equality, which are not directly guaranteed
rights under the Constitution, can have various contents, and the way to realize them15

should be determined in relation to social conditions, the state of daily lives of the people,
the way that family works, etc. at the time

(See Supreme Court Decision No. 1023 of2014, December 16, 2015, Vol. 69, No. 8, p. 2586 of the Civil Code ).
Under the provisions, the Plaintiffs have suffered serious disadvantages by not being
20

able to use the system of marriage, not having the opportunity to enjoy the rights andbenefits brought about by the system, and not being legally recognized as a family, andsuch disadvantages cannot be overlooked as an infringement of personal interests in lightof the dignity of individuals. Such disadvantage is an unforgivable violation of the
dignity of individuals and a violation of their personal interests. In other words, marriage

25

is one of the family units, and as mentioned above, the only system to select and certify
a permanent partner in a mental and physical union is the system of marriage under thecurrent law. The fact that same-sex couples do not have access to the system of marriage
and cannot benefit from certification means that same-sex couples are not legally
recognized as family. And, as stated above, whether the system of marriage are available

30

or not is a matter that affects a person throughout their lives, and in light of theimportance of marriage in the public consciousness (1(4)(iv) above), it is in the personal
interest of homosexual persons to decide whether or not to get married and with whom
to get married to form a family, and this decision should be respected. Although thedisadvantage of not being able to use the system of marriage does not necessarily violate

35

Article 13 of the Constitution as stated above, it can be said that the above -mentioned
personal interests are being violated.
In addition, there is an understanding existed within the Old Civil Code, on which theProvisions are based, and the academic theories at the time of enactment of the Meiji

40

Civil Code that the purpose of marriage was not necessarily to obtain children. As a28

result of discussions during the drafting the Meiji Civil Code, a lack of reproductive
capacity was not considered as a barrier to marriage (see 1(2)(i) above). Considering
these facts, it is recognized that the purpose of the marriage system, including theProvisions, was also to protect the communal life of the married partners. In addition,5

as stated in 1(4)(iv) above, in a 2014 survey of attitudes of unmarried persons whowanted to get married, the reason for using the marriage system was to be with one's
partner and to become a family, as much or more than having children, which means, as
the purpose of the marriage system, the aspect of the protection of one's communal life
with one's partner has become more important. In addition, the number of marriages, the10marriage rate, the total fertility rate, and the percentage of households with children are
significantly lower today than when these Provisions were enacted (see 1(4)(v) above),and marriage is not something that all people do, but rather, it has become more
important to respect and protect each person's self-determination that each personchooses a partner to spend his/her life with and create a family that is recognized by the15law. It can be said that the public awareness of the reality of marriage and the family
and the state they should be has been changing.
As mentioned above, the socially accepted idea that marriage is bet ween a man and awoman has not been lost, but is changing today. For instance, as described in 1(1) -(3)20above, the circumstances in other countries that influenced the legislative process of theProvisions are changing. In the West, homosexuality itself had been rejected because of
Christian values and medical knowledge, but due to changes in the state of the family
and medical knowledge, there has been a movement toward national recognition ofhomosexuality, and the number of countries that have implemented a system of same-25

sex marriage has been increasing since 2000. In addition, as mentioned in the previous
section (1), it is now clear that the view that homosexual people should be pathologized
as a mental illness, which had an impact on Japan, was mistak en. In 2011, the United
Nations, on the basis of the ICCPR adopted in 1996 as the UN Human Rights Code andthe International Code on Economic, Social and Cultural Rights adopted in 1996,30

resolved that discrimination based on sexual orientation is prohibite d (see 1(3)(iii)
above). And as described in 1(4)(vi) above, since 2008, the United Nations Human
Rights Committee and the Committee on Social Rights have frequently expressed theirconcerns and recommendations to Japan regarding the rights of same-sex couples. Thesecan be evaluated as a global trend that same-sex couples can have the same intention to35

marry as opposite-sex couples (see (i) above) and should be given the same rights as
opposite-sex couples.
In Japan, the government has declared measures to prohibit discrimination based on
sexual orientation in various fields since 2010, and local governments have begun to40

introduce Partnership Systems since 2015 for the purpose of guaranteeing human rights,
29respecting diversity, and creating a society where people can live in peace. As of
November 2022, the population coverage rate of local governments that have introduced
the Partnership Systems is 62.1%, and the Diet has frequently received debated thepossibility of same-sex marriage since 2015 (see 1(4)(i) above). In terms of publicawareness, as of 2015, the number of those in favor of same-sex marriage was around550%, slightly higher than those opposed, but the percentage of those in favor increased
year by year, reaching over 60% in 2008, and has continued to increase since then (see1(4)(ii) above). The number of business organizations and bar associations who are
expressing support for the realization of same-sex marriage continues to increase (see1(4)(vi) above). These facts indicate that the socially accepted idea that marriage is10

limited to heterosexual marriage has been questioned in Japan, and that public
understanding of same-sex marriage has been penetrated to a considerable extent.
As set forth above, the same-sex couple Plaintiffs are at a serious disadvantage in not
being legally recognized as a families under the Provisions, as they cannot enjoy any of15

the benefits afforded by the marriage system. Although the marriage system is based on
the premise of heterosexual marriage, the actual situation is changing. The fact of thematter is that, even if society has not yet fully accepted same-sex marriage, public
opinion as to same-sex marriage has changed considerably. In light of the foregoing, it
must be said that the legislative facts underlying the Provisions have significantly

20changed, and that in refusing same-sex couples the benefits of the marriage system andthe means to legally form a family with the partner of their choice, the Provisions are ina state of violation of Article 24(2) of the Constitution, which is based on the dignity of
the individual.
25
(iii)

As mentioned above, however, although it is a matter of personal interests to berespected for same-sex couples to decide whether or not to marry and with whom, thisis not a right directly guaranteed by the Constitution, and its realization is determined inrelation to social conditions, the circumstances of the lifestyles of Japanese citizens, and30

the nature of the family, together with other factors. Article 24 (2) of the Constitution
allows for a reasonable scope of legislative discretion in "other matters relating tomarriage and family", and various factors must be taken into consideration in making
changes to the legal system to rectify the serious disadvantages accruing to sa me-sex
couples, as well as to respect their capacity for self-determination. As for legal systems

35

that meet the characteristics of marriage described in [1] through [4] above, there aresame-sex relationship arrangements other than marriage that have been implemented inother countries as described in 1(3)(i) above. The Registered Partnership System, which
gives almost the same legal status as marriage to same-sex couples and confers legal
rights and obligations, including the benefit of certification, on non-marriage

40

partnerships between persons of the same sex, could, depending on its content, be an30

alternative to the marriage system. It is appropriate to leave to the discussion of thelegislature the issue of whether to establish such a system, separate from the marriage
system, for same-sex partnerships. In addition, in same-sex relationships, biologicalparents and children do not coincide in the family register, and provisions addressing
this issue are necessary. Therefore, it is possible that in any su ch alternative system the5presumption of illegitimacy, adoption, and assisted reproductive technology may differ
from the current marriage system. The design and framework of such a system must beleft to legislative discretion for consideration and adjustment, taking into accountvarious factors such as Japanese traditions, social conditions such as national sentiments,
as well as the welfare of children.

10

In addition, as mentioned above, in Japan, it was not until 2015 that the Diet held adebate on same-sex marriage, local governments introduced the Partnership System forthe first time, and various opinion surveys on same-sex marriage were carried out. It was
only then that the issue of same-sex marriage began to be discussed in earnest in Japan.

15

According to the recent surveys, while a majority of young people in their 20s and 30s
have positive opinions about same-sex marriage or legal protection for same-sex couples,as mentioned above, positive and negative opinions are closely matched in people 60
years of age and older. Thus, it is only relatively recently that public opinion has become
more positive toward legal protection for same-sex marriage or same-sex couples.

20

Therefore, it is not unreasonable to leave the matter to the future consideration andresponse by the legislature.
Based on the above, the Court cannot find that the Provisions which do not recognize
marriage between individuals of the same sex violate Article 24(2) of the Constitution25

as being outside the scope of legislative discretion of the Diet.
3

Regarding Issue (2) (Whether the failure to amend or repeal the Provisions is illegal
in light of Article 1(1) of the State Redress Act)

30
(1)

Article 1(1) of the State Redress Act provides for the liability of the national government
and any public entity for any damage incurred as a result of the exercise of publicauthority by an official of either the national government or such public entity, as
applicable, in violation of a legal obligation owed to an individual citizen in the course

35

of such official’s duty. Whether legislative actions or omissions by Diet members areillegal in light of this clause is determined by whether or not actions taken by such Diet
members in the course of their duties during the legislative process have violated thelegal obligations owed to individual citizens; thus it should be distinguished from theissue of the unconstitutionality of legislation.

40
31

In principle, the evaluation of the above-mentioned actions should be left to the political
judgment of the people, and even if legislation violates the provisions of the Constitution,
legislative acts or omissions of Diet members are not immediately deemed to be illegal
for the purpose of applying Article 1(1) of the State Redress Act.
5
In cases where the Diet fails to take legislative measures, however, such as the revision
or abolition of legal provisions, for a long period of time and without justification,
despite the fact that it is clear that those legal provisions are unconstitutional by virtueof the unreasonable restriction of rights and benefits guaranteed or protected under theConstitution, such legislative omission may be deemed illegal in the context of the10

application of Article 1(1) of the State Redress Act, on the ground that the actions ofDiet members in the legislative process constitute a breach of such legal obligations.
(See Case no. 1978 (O) 1240, Supreme Court, First Petty Bench decision of November
21, 1985, Minshu Vol. 39, No. 7, at 1512; 2001 (Gyo-Tsu) No. 82, No. 83, 2001 (GyoHi) No. 76, No. 77, Supreme Court, Grand Bench decision of September 14, 2005,

15

Minshu Vol. 59, No. 7, at 2087; 2020 (Gyo-Tsu) No. 255, 2020 (Gyo-Hi) No. 290, No.
291, and No. 292, Supreme Court Grand Bench decision of May 25, 2022, Minshu, Vol.
76, No. 4, at 711)
20

(2)

As to whether the failure to amend or repeal the Provisions can be held to be illegal
pursuant to the application of Article 1(1) of the State Redress Act, as explained in 2
above, the Provisions do not violate Article 13, Article 14(1), or Article 24 of theConstitution, and the claims of the Plaintiffs are without merit.
As explained above, the Provisions, which do not allow same-sex couples to benefit in25

any way from the marriage system, are in violation of Article 24 (2) of the Constitution.
Although the Diet should initiate measures to rectify this situation, as stated above, there
are many ways in which the necessary change may be effected; thus, the obligation totake legislative measures to enable marriage between individuals of the same sex, as
claimed by the Plaintiffs, cannot be considered an immediate obligation.

30

Therefore, the fact that the Provisions have not been amended or repealed is not illegal
pursuant to the application of Article 1(1) of the State Redress Act.
35

4

Conclusion
As stated above, the Plaintiff's claims are all groundless and there is no need to determine
the remaining issues, and, therefore, the claims shall be dismissed as stated in the main
text of the judgment.

40

Civil Department No. 6 of the Fukuoka District Court
32

Presiding Judge

Hiroyuki Ueda

Judge

Yoshinori Hashiguchi

Judge

Makiko Mawatari

533

Appendix 2
Summary of the Parties' Claims with respect to the Issues
1

Regarding Issue (1) (Whether the Provisions are in violation of Articles 13, 14(1) or
24 of the Constitution)

5(1)

Summary of the Plaintiffs' Claims(i)

The freedom of marriage includes the freedom to decide whether or not to marry and thefreedom to choose a partner in marriage, guaranteed respectively by Article 13 and

10

Article 24(1) of the Constitution. The Provisions that do not allow marriage between
individuals of the same sex violate Article 13 and Article 24(1) of the Constitution
because they violate the freedom of marriage of the Plaintiffs, who are same-sex couples,
without justifying circumstances, as described below.
15(a)

It is understood that individuals have the right to make their own decisions on certain
personal matters without interference by public authorities. This is the so-called right topersonal autonomy or self-determination, which is guaranteed in Article 13 of theConstitution as a component of the right of the pursuit of happiness. One such personal

20

matter is "matters related to the formation and maintenance of the family”. Family
relations should be considered a matter of personal autonomy because they entail the
personal values of individual self-realization and self-expression.
Legal marriage is the formation of a new family. The state respects an individual’s self -25

determination to enter into a long-term relationship and recognizes the couple as thecore of the family, which is itself the natural, fundamental social unit group. Legal
marriage protects children and families and provides important legal protections tomarried couples. For the foregoing reasons, legal marriage is the individual selfdetermination essential to personal autonomy, and the freedom to marry, which is at the30

core of the self-determination, is guaranteed by Article 13(1) of the Constitution.
Furthermore, because these supporting reasons do not differ if the partners in marriage
are of the same sex, this guarantee extends to same sex marriage.
Moreover, the Provisions violate the individual dignity of the same-sex couple Plaintiffs.

35

Because one’s sexual orientation cannot be changed or chosen at will and it is an
essential aspect of an individual’s social life and interpersonal relationships, it isinseparable from the individual’s personality. Therefore, any disadvantage on the
grounds of sexual orientation violates the individual dignity of the members of samesex couples. The Provisions that do not recognize same-sex marriage threaten the

40

Plaintiffs in their daily lives and violate their dignity.
34

(b)

According to the legislative history and stated purpose of Article 24 (1) of theConstitution, marriage protects the relationship between a husband and wife living
together and the family relations derived therefrom, and the freedom to marry is the
freedom to decide "whether to marry" and "with whom to marry." Since the term "b oth5sexes" was enacted without discussion as to the possible institutionalization of same -sex
marriage, the same Article does not preclude same-sex marriage.
Furthermore, because matters related to the institution of the family and gender canchange in response to changing social conditions relating to the treatment of gender and10

the understanding of the family system, such matters must be evaluated in light of theconstitutional guarantees of individual dignity and equality before the law. The scientificand medical evidence for the classification of homosexuality as a mental illness, which
was assumed at the time of the enactment of the Constitution of Japan, has been
completely discredited. The attitude and behavior of the national and local governments,

15

corporations, and the general public, have also changed drastically since that enactment.
As set forth above, Article 24(1) of the Constitution clearly does not exclude same-sex
marriage, and in light of the importance of the freedom to marry, together w ith changes
in social conditions, the freedom to marry between individuals of the same sex is also

20

guaranteed through direct or analogical application on the basis of an expanded
interpretation of the same paragraph.
(ii)

The Provisions violate Article 14(1) and Article 24(2) of the Constitution, as follows:(a)That two persons of the same sex, such as the Plaintiffs, cannot marry solely because

25
they are of the same sex, constitutes differential treatment based on sex. In addition, thedisparate treatment under the Provisions is a differential treatment on the basis of sexual
orientation, because it provides a means for those whose with a heterosexual orientation30

to marry whom they wish, while it does not provide a means for those who are notheterosexual to do the same.
In light of the fact that same-sex couples constitute a sexual minority long subject toprejudice and discrimination, and in light of the United Nations Human Rights

35

Committee’s recent decision, discrimination against sexual minorit ies is discriminationon the basis of “sex”, and therefore constitutes differential treatment on the basis of“gender”. In addition, because sexual orientation is a characteristic that cannot bechanged or chosen at will, and has been subject to social opp robrium such as prejudice,contempt, and lack of understanding, differential treatment on the basis of sexual

40

orientation constitutes differential treatment on the basis of "social status". In light of35

the foregoing, the above-mentioned differential treatment is prohibited on basis of thegrounds enumerated in the latter part of Article 14(1) of the Constitution.
(b)

Under the Provisions, same-sex couples cannot legally marry. The differential treatment
under the Provisions directly infringes on same-sex couples’ choice of partner, which is5

at the core of their freedom to marry (Article 13 and Article 24(1) of the Constitution),and thereby also restricts their decision to get married.
Marriage confers various legal and economic benefits on the parties, as well as de facto
benefits such as provision of information of medical treatment and consent thereto,10

occupancy of private rental housing, purchase of housing, the ability to be thebeneficiary of life insurance, and workplace benefits. Other psy chological and social
benefits of marriage include the stability of the couple’s personal relationships,
emotional satisfaction, and enhanced status in social life, and same-sex couples who
cannot legally marry cannot enjoy these legal, economic, psycholog ical, and social

15

benefits.
In addition, the Provisions, which limit marriage to heterosexual couples, havecontributed to the social acceptance and promotion of the discriminatory notion thathomosexuals are abnormal and inferior to heterosexuals, thereby deeply offending the20

dignity of homosexuals.
(c)

As stated above, the distinguishing treatment under the Provisions is based on the
grounds enumerated in the second sentence of Article 14(1) of the Constitution, which

25

cannot be freely changed at will, and therefore, the reasonableness of the treatment
should be strictly examined.
In addition, the Plaintiffs are minorities who have been harmed by the legal system, andthe broad legislative discretion under Article 24(2) of the Constitution does not apply to30

a violation of Article 14(1) of the Constitution; even if there is the legislative discretion,
the exercise of such discretion should be strictly examined, considering the ground of
the distinction and the infringed rights and interests.
Although the Provisions do not allow same-sex couples to marry, there is no purpose to35

justify this exclusion in itself. Based on the process of establishing the institution of
marriage up to the current Civil Code, the purpose of marriage is to protect and regulatefamily relationships and the important functions they fulfill by protecting and regulating
the most basic and important unit of the family, the “husband and wife,” the relationshipin which they live together as a family. At the time of the enactment of the Constitution

40

and the Provisions, there was a socially accepted belief that homosexuality was a mental
36

illness, but this socially accepted belief has now been shown to be scientifically incorrect.
In addition, same-sex couples can now have and raise children, which is in accordancewith the purpose of marriage, which is to bear and nurture children.
In light of the above purposes of the Civil Code and the changes in the legislative facts,

5

there is no rational basis for providing the institution of ma rriage for heterosexual
couples but not for same-sex couples.
(d)

As described above, the discriminatory treatment under the Provisions is based on genderand sexual orientation, and the Plaintiffs have suffered serious harm as their rights and

10interests have been seriously infringed by this treatment; on the other hand, however,there is no rational basis for this treatment, and therefore, it constitutes discriminatory
treatment which is prohibited by Article 14(1) of the Constitution.
The purpose of Article 24(2) of the Constitution is to eliminate the requirement for

15

consent of the head of the household, and to achieve marriage based “only on the mutual
consent.” Since there is no history of consideration of same -sex marriage, Article 24(2)cannot be recognized as a provision that permits the exclusion of same -sex marriage and,even if interpreted consistently with this exclusion, the issue of violation of Article 14 (1)of the Constitution cannot be avoided. Rather, even if the legislature has a certain amount20

of discretion in matters concerning the family, Article 24(2) of the Constitution provides
the grounds for controlling that discretion. So, unless legislation is based on “individual
dignity” and “essential equality,” it is a violation of this Article. As such, the Provisions
violate Article 14(1) and Article 24(2) of the Constitution.
25(2)

Summary of Defendant’s allegations(i)

The Provisions do not violate Article 13 and Article 24(1) of the Constitution(a)

In light of the origin, history, purpose, and objectives of the current marriage system,
marriage has traditionally been understood in connection with reproduction and30

considered as a relationship established between a man and a woman. In Japan, marriage
institutionalized under the Meiji Civil Code was based on the premise of a union between
a man and a woman, and the existence of same-sex marriage was not assumed in that
context. The enactment of the Meiji Civil Code was before the recognition ofhomosexuality as a mental disorder spread in Japan, and was not enacted on the premise

35

of such recognition. Even when the Civil Code was completely revised with theenactment of the Constitution of Japan and the current Civil Code was enacted, in lightof the wording of the current Civil Code, the reasons for the proposal of the amendment,
and the deliberations in the Diet at the time of the amendment, the assumption that theparties to a marriage were a man and a woman was unchanged at the time of enactment

40of the current Civil Code. Even today, it is generally understood that the parties to37

marriage are a man and a woman.
In addition, it is clear that “both sexes” and “husband and wife” referred to in Article
24(1) of the Constitution, by their wording, represent a man and a woman, and theConstitution does not contemplate the establishment of marriage when both parties have5

the same sex. Even in paragraph (2) of the same Article, which is based on thisassumption, there is no request for the establishment of an institution through legislation
other than marriage as a relationship between two opposite sexes. This assumption thatmarriage is between a man and a woman is also based on academic theories, the processof enactment of Article 24 of the Constitution, and the fact that the social debate on

10

same-sex marriage is still in progress. Therefore, it is reasonable to conclude that
“freedom to marry” in the sense that the parties concerned are free to decide “whether
to contract marriage and when and with whom to marry,” and are not prevented fromdoing so, is guaranteed only for marriage involving personal unions between persons of
the opposite sex, and that the Provisions are not in violation of Article 24(1) of the15

Constitution.
(b)

Since it is understood that the specific content of matters concerning marriage and family
shall be regulated by law in accordance with Article 24(2) of the Constitution, thecontent of the rights and interests, etc., concerning marriage and family shall be

20

specifically determined only based on the system to be established by law, taking into
consideration the purpose of the Constitution; therefore, it cannot be interpreted as being
constitutionally guaranteed as an innate and natural right of freedom apart from the legal
system, and the Plaintiffs’ argument regarding the “freedom to marry” as an issue of
infringement of the right of freedom guaranteed by Article 13 of the Constituti on lacks

25

any premise.
The essence of the Plaintiffs’ claim is nothing other than a demand to the state to createa legal system that allows the same positive protection and legal interests to be provided
to same-sex personal relationships as to opposite-sex personal relationships, and such30

rights and interests cannot be interpreted as a constituent of the right to the pursuit ofhappiness as provided in Article 13 of the Constitution.

35

(ii)

The Provisions do not violate Article 14(1) and Article 24(2) of the Constitution.

(a)

In interpreting a particular constitutional provision, it is necessary to consider its
consistency with other relevant provisions of the Constitution. Since Article 24(2) of theConstitution clearly only provides for marriage between persons of the opposite sex andcalls for the establishment of a legal system, it is naturally expected and permitted that
the Provisions provide for marriage as a personal union between persons of the opposite

40

sex and not as a personal union between persons of the same sex . Accordingly, persons
38

of the same sex cannot marry based on the Provisions, which do not violate Article 14(1)or Article 24(2) of the Constitution.
(b)
5

a

Even if the question arises as to whether matters relating to marriage and family could
violate Article 14(1) of the Constitution, it should be determined based on the discretion
entrusted to the legislature by Article 24(2) of the Constitution, taking into consideration
various factors in social conditions, including national traditions and public sentiment,
as well as by making an overall judgment regarding the overall regulation of the10

relationships between husband and wife, and parent and child, in each era.
Marriage is not a personal matter, but is an institution which forms the family, which isthe natural and fundamental unit that constitutes and supports Japanese society as itscore. This institution has been approved of by Japanese society’s approval, which has

15historically taken shape. As such, the question of what kind of personal relationshipshould be the subject of a marriage also is an extremely important issue that affects thenature of the family in Japan and the very foundations of Japanese society. Therefore,
the scope of marriage and its requirements should be determined by giving due
consideration to social conditions, including national traditions and public sentiment, as

20

well as to what kind of society our country will be led to in the future. As such, they arematters that should be determined through the democratic process, in the sense that a
broad national debate over a period of time is essential. Therefore, in light of the factthat the Constitution does not envision the establishment of a marriage system thatcovers the personal bond between persons of the same sex, it is reasonable to conclude

25

that the legislature has wide discretion in determining whether to establish a legal system
related to marriage and family that covers the personal bond between persons of thesame sex, including issues such as whether to establish same -sex marriage and whether
to establish a new legal system similar to marriage that covers the personal bond between
persons of the same sex, compared to matters related to marriage and family

30

relationships between persons of the opposite sex.
Under the Provisions, while both men and women can marry persons of the opposite sex,
neither sex is allowed to marry persons of the same sex, and therefore, the Provisions
cannot be evaluated as causing differential treatment on the basis of gender. In addition,

35

the Provisions provide for marriage between one man and one woman, and theirlanguage does not require the parties to have a particular sexual orientation as arequirement for marriage or prohibit marriage on the basis of a party ’s having aparticular sexual orientation. The purpose, content, and manner of the Provisions
themselves are not such that the application of the marriage system can be denied on th e

40basis of sexual orientation. Therefore, they are neutral provisions regarding sexual39

orientation and they cannot be interpreted as making a distinction based on sexual
orientation. Even if the Provisions create a difference between homosexuals andheterosexuals based on sexual orientation, it is only a de facto result or indirect effect,
and it is understood that the legislature has a wider discretion in making such a
distinction than when a direct distinction is made by a legal provision.

5

Also, as stated above, the specific content of marriage and family matters shall be
regulated by law in accordance with Article 24(2) of the Constitution, and the freedom
to marry in the sense that the parties concerned are free to decide “whether to marry,when and with whom to marry,” and not be prevented from doing so, is a freedom that10

is granted to individuals only by or based on the legal institution of marriage provided
for in the Constitution, and cannot be considered an innate natural right or interest, or aright or interest that people should naturally enjoy. The Provisions do not restrict the actof establishing and maintaining a personal relationship similar to marriage or leading a
joint life between persons of the same sex, and the disadvantages claimed by the15

Plaintiffs due to the Provisions can be eliminated or alleviated to a considerable extent
by using the Civil Code or other legal systems.
The essential issue in this case is the compatibility with the Constitution of notestablishing a legal system that recognizes same-sex marriage in addition to the existing

20

marriage system, and in light of the above, even if there is room to discuss whether theProvisions violate Article 14 of the Constitution, the case should be limited tocircumstances in which the Provisions do not have a rational basis for their legislative
purpose or the specific content of their means and methods are extremely unreasonable
in relation to the legislative purpose, and it is clear that the Provisions are out of the25

scope of the broad discretion given to the legislature and are abusive.
b

In light of the legislative history of the Provisions and the content of the provisions of
the Civil Code and other laws, as mentioned in (i)(a) above, it is reasonable to conclude

30

that the purpose of the Provisions is to provide legal protection specifically for the
relationship between a man and a woman who live together while bearing and raisingchildren, and that there is a rational basis for this purpose.
The Provisions define the scope of couples who can marry by taking an abstract and35

formulaic view of the legislative purpose based on biological natural reproduc tivity.
Given the provision of Article 24(1) of the Constitution, which presupposes marriage
between opposite-sex couples, and the fact that, in Japan, there is a social reality thatthe human bond between a man and a woman forms the core of the family, which is thenatural and fundamental unit that constitutes and supports Japanese society, while giving

40

birth to and nurturing the next generation that will support the future society, and that40

there is social recognition that has been historically formed for this institution, and giventhat natural reproduction is not possible in personal unions between persons of the samesex and the recognition of such relationships is still under discussion in society, notproviding for same-sex marriage is reasonable in relation to the legislative purpose of
the Provisions.

5

Therefore, there is no room to conclude that the Provisions violate Article 14(1) and
Article 24(2) of the Constitution.
102

Issue (2) (Whether the failure to amend or repeal the Provisions is illegal in light ofArticle 1(1) of the State Redress Act)

(1)

Summary of the Plaintiffs' Claims(a)

The unconstitutionality of the Provisions was clear
As we have mentioned, the Provisions violate Article 13 and Article 24(1) of theConstitution by violating the freedom to marry, and Article 14(1) and Article 24(2) of15

the Constitution by refusing to recognize the marriage of same-sex couples without arational basis.
In addition, it became clear to the Diet members and the Minister of Justice that theProvisions violate Articles 13, 14(1), and 24 of the Constitution at the latest, well before

20

July 5, 2019, on which the Plaintiffs submitted their marriage certificates, due to: (1) the
existence of various judicial decisions that call for consideration of homosexual persons;(2) the continuous increase of countries that allow same-sex marriage since 2000 andthe global trend in judiciaries in foreign countries finding that the failure to recognize
same-sex marriage is unconstitutional; (3) the Japanese government seeking to eliminate

25

discrimination based on sexual orientation; (4) the increase of the number of local
governments that have introduced partnership systems; (5) the fact that written opinions
that call for recognition of same-sex marriage have been submitted; (6) the fact that theDiet has repeatedly discussed guarantees of same-sex marriage and same-sex
partnerships; (7) the fact that all Diet members can clearly recognize the necessity of30

legalizing same-sex marriage; (8) the fact that public opinion polls show that the numberof people in favor of same-sex marriage exceeds that of those opposed to it; and (9) thefact that the recommendations have repeatedly been given by the United Nations
concerning the legal guarantee of same-sex partnerships.
35(b)

The Diet members have failed to take legislative measures for a prolonged period
without just cause
In order to resolve the above unconstitutional situation, the Civil Code and other laws
should be amended to recognize same-sex marriage, and there is no particular difficulty40

in doing so from a legislative procedural standpoint. As mentioned above, the Plaintiffs
41

and other parties have suffered tremendous damage due to the lack of legal recognitionof their marriage, and while the members of the Diet should have taken prompt action
to address this situation, they have failed to do so for a prolonged period of time without
just cause.
5(c)Inaction by the Minister of Justice
As stated above, the unconstitutional state of affairs described above was clear, and theMinister of Justice had a duty to plan and draft civil legislation to permit same -sex
marriage well before the time that the Plaintiffs submitted their marriage registration
notifications, and he failed to do so even though he was aware that he should have done

10

so.
(d)

Conclusion
In light of the circumstances described above, although it has been clear that theProvisions violate Articles 13, 14(1), and 24 of the Constitution from quite a long time

15

ago, the Diet members have failed to legislate for a long period of time without justcause, and the Minister of Justice failed to do so even though he had a duty to legislate.
Therefore, the Defendant is liable for damages under Article 1 of the State Redress Act
for damages caused by the omissions of the Diet and of the Minister of Justice in failingto enact legislation recognizing same-sex marriage.

20(2)

Summary of the Defendant's Claims
As stated in (1) above, since the Provisions do not violate the Constitution, there is noroom for this legislative omission to be considered to be illegal in application of theprovisions of Article 1(1) of the State Redress Act as a violation of the legal duties owed

25

by Diet members to individual citizens in the course of their duties.
The Plaintiffs' claim that the Minister of Justice has a duty to act and the basis for suchclaim are unclear. Even leaving this point aside, as stated above, since the om ission of30

legislation by the Diet or the members of the Diet, who have the inherent authority tolegislate, is not a violation of Article 1(1) of the State Redress Act, the omission by the
Minister of Justice, who is only responsible for planning and draft ing civil legislation,is also not a violation.

35

3Issue (3) (The incurrence and amount of damages by the Plaintiffs)(1)

Summary of the Plaintiffs' Claims
The Plaintiffs have suffered serious damages due to the inaction by the above Diet
members and the Minister of Justice, who have violated the constitutionally guaranteed
right to freedom of marriage, prevented them from obtaining the psychological and40social benefits, the legal and economic rights and benefits, and the other de fact o benefits42

associated with the social recognition of marriage, and their personal dignity has also
been severely injured. The Plaintiffs have suffered significant emotional distress as aresult of such injury. If such mental anguish were evaluated in monetary terms, it would
be no less than one million yen for each of the Plaintiffs.
5(2)

Summary of the Defendant's allegations
The Defendant denies the Plaintiffs' claims.

4
10Issue (4) (Whether there is a mutual guarantee under Article 6 of the State Redress
Act with respect to Plaintiff 6)(1)

Summary of Plaintiffs' Claims
Although Plaintiff 6 is a foreign national, it should be understood that the "mutual
guarantee" referred to in Article 6 of the State Redress Act is not a rule of right, and thatthe party receiving the claim must assert and prove its non-existence.

15
In addition, there is a mutual guarantee between Japan and ●●●, the country of Plaintiff
6’s nationality, which has a law stipulating state liability and the state is liable tocompensate private parties based on the torts of public officials or breach of duty
incidental to control of property in accordance with the general law of torts.
20
In light of the above, the existence or non-existence of a mutual guarantee cannot be
used as a reason to exclude state compensation for Plaintiff 6.
(2)
25

Summary of Defendant's claims
Plaintiff 6 is not a Japanese national, and in light of the purpose of Article 6 of the State
Redress Act, Plaintiff 6 has not claimed nor proved her claim regarding the fulfillmentof the requirements for a mutual guarantee even though Plaintiff 6 is required to do so,and Plaintiff 6’s claim should be dismissed.

30

This is an original.
June 8, 2023
Fukuoka District Court, 6th Civil Division
Court Clerk Katsuaki Ogata

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[End]

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